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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Maxwell, Petitioner [1868] ScotLR 5_615 (26 June 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/05SLR0615.html
Cite as: [1868] ScotLR 5_615, [1868] SLR 5_615
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SCOTTISH_SLR_Court_of_Session
Page: 615↓
Court of Session Inner House First Division.
Facts:
Section 12 of the Trusts Act, 30 & 31 Vict., c. 97, applies to the case of trustees predeceasing the testator.
Miss Mary Maxwell died in 1868, leaving a trust-disposition and settlement dated 1850, whereby she nominated certain persons as trustees. These persons predeceased Miss Maxwell.
This petition was now presented under section 12 of the Act 30 & 31 Vict., c. 97, the “Trust (Scotland) Act, 1867,” whereby it is enacted that “when trustees cannot be assumed under any trust-deed the Court may, upon the application of any party having interest in the trust-estate, appoint a trustee or trustees under such trust-deed, with all the power incident to that office.” The petition contained an alternative prayer for the appointment of a judicial factor.
The Lord Ordinary reported the point on the question of the competency.
John Marshall for petitioner.
Lord President—The general words by which this clause is introduced, “when trustees cannot be assumed,” &c., are intended to comprehend every case where a trust cannot be kept up by means of the powers within the trust itself. In every such case the power of the Court may be invoked. It is, however, a matter of discretion whether they will or will not interfere, and that is for the consideration of the Lord Ordinary in the first instance. I understand the point at present reported to us is the competency.
The other judges concurred.
Solicitors: Agents for Petitioner— Russell & Nicolson, C.S.